(a) Appeal by a Defendant.—A defendant may file a notice of appeal in the district court for review of an otherwise final sentence if the sentence—
(3)
is greater than the sentence specified in the applicable guideline range to the extent that the sentence includes a greater fine or term of imprisonment, probation, or supervised release than the maximum established in the guideline range, or includes a more limiting condition of probation or supervised release under section 3563(b)(6) or (b)(11) [1] than the maximum established in the guideline range; or
(b) Appeal by the Government.—The Government may file a notice of appeal in the district court for review of an otherwise final sentence if the sentence—
(3)
is less than the sentence specified in the applicable guideline range to the extent that the sentence includes a lesser fine or term of imprisonment, probation, or supervised release than the minimum established in the guideline range, or includes a less limiting condition of probation or supervised release under section 3563(b)(6) or (b)(11) 1 than the minimum established in the guideline range; or
(4)
was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.
The Government may not further prosecute such appeal without the personal approval of the Attorney General, the Solicitor General, or a deputy solicitor general designated by the Solicitor General.
(c) Plea Agreements.—In the case of a plea agreement that includes a specific sentence under rule 11(e)(1)(C) of the Federal Rules of Criminal Procedure—
(d) Record on Review.—If a notice of appeal is filed in the district court pursuant to subsection (a) or (b), the clerk shall certify to the court of appeals—
(e) Consideration.—Upon review of the record, the court of appeals shall determine whether the sentence—
(3) is outside the applicable guideline range, and
(A)
the district court failed to provide the written statement of reasons required by section 3553(c);
(C)
the sentence departs to an unreasonable degree from the applicable guidelines range, having regard for the factors to be considered in imposing a sentence, as set forth in section 3553(a) of this title and the reasons for the imposition of the particular sentence, as stated by the district court pursuant to the provisions of section 3553(c); or
(4)
was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable.
The court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous and, except with respect to determinations under subsection (3)(A) or (3)(B), shall give due deference to the district court’s application of the guidelines to the facts. With respect to determinations under subsection (3)(A) or (3)(B), the court of appeals shall review de novo the district court’s application of the guidelines to the facts.
(f) Decision and Disposition.—If the court of appeals determines that—
(1)
the sentence was imposed in violation of law or imposed as a result of an incorrect application of the sentencing guidelines, the court shall remand the case for further sentencing proceedings with such instructions as the court considers appropriate;
(2) the sentence is outside the applicable guideline range and the district court failed to provide the required statement of reasons in the order of judgment and commitment, or the departure is based on an impermissible factor, or is to an unreasonable degree, or the sentence was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable, it shall state specific reasons for its conclusions and—
(g) Sentencing Upon Remand.—A district court to which a case is remanded pursuant to subsection (f)(1) or (f)(2) shall resentence a defendant in accordance with section 3553 and with such instructions as may have been given by the court of appeals, except that—
(1)
In determining the range referred to in subsection 3553(a)(4), the court shall apply the guidelines issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, and that were in effect on the date of the previous sentencing of the defendant prior to the appeal, together with any amendments thereto by any act of Congress that was in effect on such date; and
(2) The court shall not impose a sentence outside the applicable guidelines range except upon a ground that—
(h) Application to a Sentence by a Magistrate Judge.—
An appeal of an otherwise final sentence imposed by a United States magistrate judge may be taken to a judge of the district court, and this section shall apply (except for the requirement of approval by the Attorney General or the Solicitor General in the case of a Government appeal) as though the appeal were to a court of appeals from a sentence imposed by a district court.
(i) Guideline Not Expressed as a Range.—
For the purpose of this section, the term “guideline range” includes a guideline range having the same upper and lower limits.
(j) Definitions.—For purposes of this section—
(Added Pub. L. 98–473, title II, § 213(a), Oct. 12, 1984, 98 Stat. 2011; amended Pub. L. 99–646, § 73(a), Nov. 10, 1986, 100 Stat. 3617; Pub. L. 100–182, §§ 4–6, Dec. 7, 1987, 101 Stat. 1266, 1267; Pub. L. 100–690, title VII, § 7103(a), Nov. 18, 1988, 102 Stat. 4416; Pub. L. 101–647, title XXXV, §§ 3501, 3503, Nov. 29, 1990, 104 Stat. 4921; Pub. L. 101–650, title III, § 321, Dec. 1, 1990, 104 Stat. 5117; Pub. L. 103–322, title XXXIII, § 330002(k), Sept. 13, 1994, 108 Stat. 2140; Pub. L. 108–21, title IV, § 401(d)–(f), Apr. 30, 2003, 117 Stat. 670, 671.)